tv [untitled] July 1, 2012 3:30pm-4:00pm EDT
their acquaint answer. to we beneath the dignity of the law. >> do you remember when you learned president nixon was going to resign? >> yes. i had a longstanding commitment to go fishing with my brother and some friends on august 9th. so i told sam, i had gone back to boston. sam called me up, said he needed more help. so i went back for a few weeks but i said, you know, august 7th or whatever it was, i got to be out of here. so i was on a small boat in a fjord in iceland. and i looked down and there was a newspaper from a couple of days ago with a photograph of i guess president ford taking the oath of office. i was in a fjord near reykjavik, iceland. >> what did you think of the pardon? >> it's a tough one. i don't think i would have done it, but i didn't have the
stereoscopic view of the harm to the country. you know, i mean, this experience med a real prosecutor. and i -- i've had prosecutive instincts for a long time. maybe they weren't honed in 1974, but i think even then i would have done it. >> what did it this experience teach you about the wheels of our government? >> the wheels may grind slowly, but they grind pretty well. there's a lot of force in the law, and it made the president do a lot of things that he didn't want to do, and the whole procedure involved a lot of things that a lot of people didn't want to have done. but, i mean, there's three countries in the world i associate with the capacity for self examination. one is israel, one is the united kingdom, and the third and perhaps the greatest is the united states. >> did you stay in touch, besides the 1999 story, did you stay in touch with hillary rodham after?
>> oh, yeah. no. i've known her pretty continuously. there were whispered conversations about bill in 1974. they were married the next year, same year i was married. and the bill in question, the whispers in question, not bill weld. it was bill clinton. i never did see him visiting there. he and i went to the same college at oxford a year apart, and had some very good mutual friends so that by the time i became governor, i couldn't wait to meet this guy that i had herd so much about. i have known hillary rodham now hill hilary rodham clinton in lots of different contexts. >> you said this launched in your career. >> in the sense i became interested in criminal law, went back to run for state attorney general and led to everything else. that led to being appointed u.s. attorney which led to being
elected criminal division in washington and led to be elected governor of massachusetts. >> have i forgotten or been unable to elicit any stories? >> that's a wrap as they say in hollywood. >> thank you. it's been a pleasure. >> thank you. >> thanks. thank you. you're watching american history tv. every week we bring you eyewitness accounts of the people and events that shaped our nation. saturdays at 8:00 a.m., sundays at 3:00 p.m., mondays at 4:00 p.m. eastern. on c-span3. to mark the 40th anniversary of watergate, chapman university school of law hosted a symposium titled a commemoration of the rule of law. in this last session, panelists considered watergate and the reforms enacted in the aftermath. this program is about an hour and 40 minutes.
>> i would like to introduce our moderator for this panel. for those of you who joined us for dinner, miss winebanks gave a terrific speech. i'll give those of you who weren't here a little bit of her background. one of the first women prosecutors in the country and first in the department of justice's organized crimes section. this experience led to her appointment as one of three trial attorneys in the watergate case. in that role, she cross-examined rosemary woods about the 18 1/2 minute gap found to be missing in one of the nixon white house tape recordings. and then she entered private practice and named general council of the u.s. army. by president jimmy carter. she is currently an innovative management consultant and serves as managing director of operation green jobs, a nonprofit that provides green job training and placement to veterans. she served on the board of directors for several universities. she received bs from the university of illinois at champaign/urbana. >> sorry. that's not on here. it's blurred out. and her jd from columbia university.
with that, i'll have her introduce our panelists. [ applause ] >> thank you, whitney. thank you, chapman, for organizing this. we're going to do something a little different on this panel. i hope we can keep you all awake for this last hour or so. we're going to have a little bit of a slide show as i'm introducing the panelists that you will see. just some pictures, so it won't distract you too much. but i want to first introduce all of our panelists and say we are going to have a conversation here instead of having us just talking to you, and we'll take questions as well from the audience. so i'm hoping it will be a lively and entertaining and that we can keep the histrionics amongst us to a minimum, but enough to keep you awake. let me introduce professor arnold rockvaier. i knew i would say it wrong.
he was a law student during watergate. for the summer job he had a job delivering u.s. postal mail. you had six hours to do it in. he was able to do it in three so he spent the last three hours watching the watergate hearings that summer. he also -- i share with him a common interest in robert mardian. who was the least known of the watergate defendants or maybe the second least. >> who was convicted. >> least known convicted defendant. and he got involved in the appeal from the conviction, which he succeeded in overturning on a technical legal ground that it wasn't severed after his lawyer got sick and had to withdraw. he did have ample, good counsel from arnold's firm. i'm sure it wasn't inconfident
counsel. just one mardian had chosen. we have a special bond and i'm sure we will have disagreements about bob mardian, but i'm sure for your enjoyment. for the last 30 years, a professor of law at the university of baltimore law school. and on my right is jim rabenault. and said how do i say it? jim has been working with john dean on the ethics training that stems out of the watergate experience and the question that john asked about how did so many lawyers get in to trouble because of watergate? and so, you will hear from his standpoint, on one hand, a convicted defendant. on the other we have -- >> not me. >> a perspective of a lawyer for a convicted defendant, and on the other hand, someone who was cooperating with the prosecution and who pled guilty and has a
focus particularly on representing an organization and what that means as to who your client is when you represent the white house or in the case of arnie when you represent the committee to re-elect the president. so you will have very different perspectives from the two of them. jim is now a partner in thompson high in ohio. and has published two books on the history of the american presidency, and it was actually a common interest in president harding that brought john dean and jim together. so that's a pretty interesting little thing. laurel rigartos, is a professor. and she is the professor's professor and the professional on the subject of our panel on ethics. an associate professor at northern illinois university. another illinois person i'm glad to say where she teaches about professional responsibility. so she will have some very good insights into our subject.
she also was an associate at my old law firm, jenner & block and a partner at michael, best and frederick. so let's talk about some of the things we are going to talk about today just to set the stage for the questions i'll ask the panelists and they may want to ask each other questions, as well. we'll look at what were the ethical dilemmas that lawyers involved in the watergate case had to face and what were the dilemmas that actually got them in trouble? and we'll talk with about what the rules that they were operating under at the time. what the rules are now. whether those rules are an improvement. whether it would have changed the outcome, the same either way or maybe even worse. and i also want to make sure they address whether they really think these were ethical lapses or straight out criminal violations. because i would say a lot of
what happened was not an ethical lapse, it was a violation of article 18 of the criminal code of the united states of america. and so i would like them to address that. and in a conversation i just had, i was also wondering how we might apply some of the moral ethical rules. not necessarily the model rules of lawyers but the ethical rules to situations outside of the law. so, for example, at penn state, there was a reporting up, which is one of the subjects i think jim will particularly be talking about, reporting up. the coach did report up. and nobody did anything. john dean reported up and nothing happened. so it's not just in a legal context. i want you to be able to think about this for those of you who are in private practice or representing corporations. it's not necessarily always just the legal issues. so let's talk about that. and before we get to specific
conduct that was involved, i would like to ask each of you a question and have you just each give an answer to kind of put in place your unique viewpoints about was it client confidentiality that was the big problem? attorney/client privilege. or the secrets of a client? was it lablg lack of clarity over who the client was? and was it fear of losing a client? which would happen in private practice just as much. or was it lack of knowledge of the criminal law? you want to start, arnie? >> you better give him the mike. >> this morning mr. armstrong used the word epistemology. and was part of bob mardian's defense and the concern he had, in that he was given the job by john mitchell to find out what this whole watergate break-in was about.
because after the break-in, the democratic national committee announced that it was bringing a civil suit for invasion of privacy against -- if you were outside of the committee, called creep, or we had to call it crp, all right, because we couldn't call it creep in front of our client. all right? but the democratic committee was going to sue the committee to re-elect the president for invasion of privacy. and john mitchell asked bob mardian to be the lead lawyer on that suit. and without going into great detail, it was the epistemological issue as to what did he know about watergate? and he -- to learn about this, to defend his client, he met with some people such as gordon lidde and jeb mcgruder and learned what became known as the
truth. the truth of the break-in that mitchell had authorized it, that higher ups knew all about this, and then when he went to john mitchell, and we'll talk about this later, as well, mitchell said, he's a liar. he's crazy. all right? not telling you the truth. from that point on, robert mardian did certain things, arguing, they want to frolic of their own. it was a cia operation. so the issue becomes from the prosecution's point of view, does this indicate criminal intent or whether he is acting as an attorney? the ability to know when an organization has been engaged in wrongdoing as an attorney. and carrying forth, investigating and defending your client. i believe this is a close issue between your ethical obligation and the criminal law in criminal intent.
>> before i turn to jim, i just -- the slides are being shown now, and i notice that you have a slide that shows some of mardian's conduct that you didn't mention before he became the lawyer on the dnc case that hadn't been filed. he wasn't the lawyer for creep on the case. he actually tried to conceal bob mardian's identity. i'm sorry. jim mccord. jim mccord had given an alias when he was arrested because he knew he would be traced immediately, and wanted to seal his relationship to the commission to re-elect the president. and bob mardian made a phone call to get him out of jail before his identity would be discovered. he participated in drafting a false press release. i think those things are up there as the slides go through. so there is a prior question of
criminal conduct before he became the lawyer for creep. maybe we'll talk about that after we get the answer to the question for everybody. but i wanted to put it in context. so jim? >> i find any time somebody on c-span uses the word epistemology, i turn it off. because i don't know what it means. actually, let me start off by saying that arnie has been a key part of what john and i have been doing in our watergate cle. when we first started looking at this, we used an article he wrote "called enron, watergate and the regulation of the legal profession" and it's a wonderful article, but what he really looks at is what happens with the lawyer who is confronted with crime or fraud, and -- but is under the duty of confidentiality? he looks at that in mardian's case.
and mardian's clearly working for crp, asked to investigate, clearly found out stuff. at what point did that lawyer stop being a lawyer and become an actor in a legal situation? a conspirator? this is a question john faced identically because he represented the white house, spoke with the same people, gordon lidde. he a high degree of confidentiality at that time. the rules for the profession at this time were very unclear in terms of who your client was when you represented an organization. was it the people of that organization or was it the organization itself? that has a lot to do with the way people acted back then. so he were kind of looking at this issue of confidentiality and when a lawyer who is under confidentiality crosses the line and becomes a conspirator and gets involved in crime. and it's a tough question.
now, fortunately, the rules have changed as a direct result of watergate. john's testimony before the senate resulted in the model rules. and the model rules today say that when you learn about this sort of thing, you have to go through a series of things. you have to report up within the organization. try to solve it within the organization, that's your client. and in essence, protect your client from the very people running it sometimes. that's your job as a lawyer. and the other thing it says is if you get to the top and you're not satisfied, things aren't going to stop, then you can report out, which is making the lawyer a whistleblower. and so, it -- these issues are gigantic issues for our profession because this was hotly debated at the ada, rejected these rules until enron as arnie points out and then they changed the rules. all around the country except for california.
but -- so it's a good question. the whole question of when do you step out of your role of being a lawyer and a confidante and getting people's secrets and knowing crimes are happening and will continue, do you just sit back or do you have to act? and if you sit back, do you become a criminal? it's a big question for our profession. watergate has a lot to do with that question. >> that's a good intro to laurel because you have raised a question about the line between representing your client and the responsibilities you have to your client and laurel's point as she will i think explain, when you have an obligation to third parties, to the public. >> i guess i'll cast the net a little wider because i've been looking at the disciplinary action that was taken against lawyers as a result of their involvement in watergate in 1976, the national organization
of bar counsel put out a report. they had formed a committee in 1973 to track what was going on around the country in terms of disciplinary proceedings before state supreme courts as a result of the conduct of lawyers involved. and at the time they issued their report in 1976, 29 lawyers had been the subject of disciplinary proceedings at the time of that report eight had been disbarred, 11 had been otherwise disciplined, suspended or rebring manded in some other way and the remaining ones there hadn't been any action taken so the final numbers might be a little off but of those 29 at least 18 had some formal disciplinary action taken against them by the bars in which they were licensed. but one thing that i think is important to think about is that most of them were not wearing
their lawyer hat so many of the actors who were lawyers were not thinking about the confidentiality rules or their role as a lawyer because they happen to have a law license but they were not wearing their lawyer hat in the course their job, but that, of course, did not save them from disciplinary action or from losing their license in some instances. and when i read many of the orders, in particular disbarring or suspending some of the actors, a lot of the orders did to me resonated about the invasion of the rights of third parties and had they thought about that, and then for some of them who were wearing their lawyer hat, then we have a very institutional sort of tension between our role as a lawyer, a trusted adviser, a confidant who needs to have all the information from our client, and the tension between our role as a public servant, as somebody
who is supposed to help promote justice and when does our knowledge of confidential information put us in tension between those two roles. that's been sort of the enron debate and the debate with 1.6 and 1.13. >> and how would you answer the question of what that balance should be between -- this is only talking about the lawyers who were disciplined who were acting in their lawyer capacity, and maybe are, arnie, you will to discuss the sequence of whether mardian wasn't just an employee of creep, at the time he took certain actions and then became a lawyer for creep later. but laurel, do you want to continue with your thought of what the balance is? >> i think there's three different ways we can think about it. we can think about when are there times where we're going to say a lawyer must breach that confidentiality because there's some greater interest at stake?
we can also think about it when are there times where we will permit a lawyer to sort of exercise their own judgment and perhaps breach those confidentialities again in order to protect some other interest. and that's i think a lot of what sarbanes oxley and 1.6 and 1.13 have revolved around. one thing i think maybe we haven't looked at enough is our role as sort of a moral adviser. if the rules don't permit it or demand it, should we at least be counseling our clients about what is right in trying to be persuasive and influential and that doesn't raise kesconcerns about chilling our communications because we might breach their confidentiality. if you look at how the rules have progressed since 1908 with the canons, our role as the moral adviser and moral compass
has been diminished more and more as we move toward a more black letter regulatory code for lawyers. it's left less room for that, and that's sort of one thing i think we can think about. >> jim, do you think it would have made a difference? >> the thing i think is important and that john and i talk about a lot is this whole idea of leverage. because lawyers can and a lot of lawyers do counsel their clients to do the right things, and a lot of times they find their counsel is not being followed. so you have to have some leverage to not only counsel them to do the right things but to get them to do the right things and to -- the way the rules are set up right now, the idea is that you tell them to do this and give them the choice of doing it, and then when it's clear thaers not going to follow that choice you threaten them essentially by saying i may have to resign, with noise, telling people i'm resigning for a
reason. or i may have to report out. and then the hope is that the client will do the right thing. and so the best world is that lawyers are acting as moralists, telling their clients to do the right thing, but at the end of the day it's a very practical thing. how do you make them do the right thing when you have no leverage other than, you know, you better do this or i'm going to very quietly resign, and nobody will ever know about it. so it's a real issue of leverage. >> arnie? >> let me comment on the failure of the organization to respond whether you can actually disclose or merely resign. there is a debate on that, and i would say that although after watergate there was a tremendous sentiment that there should be more disclosure, that the majority approach probably is resignation and not disclosure. when the aba was considering the
confidentiality rule, the 1.6, they actually increased the confidentiality scope to permit less disclosure than before watergate. so, for example, give one example, the aba model rules only would permit disclosure if someone was going to be killed or substantial bodily harm. now, i would say based upon my research around the country, i would say there's no national consensus on confidentiality even today. the states are really all over the place. some states, for example, like florida, you must disclose any crime of a client. other ones permit, only permit, don't require, only crimes that will prevent someone from being killed. so there's really no consensus there. so the concern that we had in representing mr. mardian in the
case was -- were the allegations that, well, he should have made disclosure of what he had learned from liddy and what he had learned from others, and if he had disclosed this to the fbi, if he had gone public with this, then the whole thing could have been cut short two or three days after the break-in because he learned of all of this the very first week. and it was his position that he was under the confidentiality obligation not to disclose outside the organization. there was no 1.13 at the time. it turns out, and i'm not saying this is not -- does not prove he's not a criminal intent in any way, but what he did actually became the rule that was adopted. in other words, once you get confirmation, he went right to the top, he went to john mitchell, and john mitchell basically said you're being fed lies. then he talked to some other people, and then he realized, i
don't like what's going on here, and he resigns. so bob mardian was only involved as the attorney for about one month. there were some other accusations against him, and his defense on those were basically put the denial card i found up there. he just denied some of this stuff. jill mentions obviously there were two issues here -- it's not denial, i'm just selective about the reality i choose to accept. very quickly since jill brought it up, somebody, i will say somebody called up gordon liddy to try to contact richard klein on the burning tree golf course to get him out of jail. the prosecution presented evidence that bob mardian was involved in that and bob mardian denied it. here we go again. what's the reality he choose to
accept? there was a false press release that was issued where james mccord, who had been a creep security officer had been arrested, and the false press release -- the press release said -- it was false. it was obviously false. it said, well, mr. mccord has many clients. creep is one client of his, but he has other clients, and we don't know anything about this. of course, not expressly, at least very, very much hinting that this watergate job was for another client, all right? those did occur before mardian was asked to be counsel. however, mardian denied doing those things. that's just what the jury concluded and with all the things mardian was accused of doing, we never know which one the jury hung their hat on, this or that. >> okay. before we lose the point, part of your original question was
you asked about if there was any fear of losing the client. >> right. >> and that has crossed my mind somewhat because it seemed to me reading from mr. dean's book and other materials that there was this culture from the white house that the ends justified the means, and whatever nixon wanted, you know, i don't care how you get it done, go get it done. and i don't think that's necessarily unique to that setting. i think a lot of new graduates who go out into the world are going to encounter powerful clients who don't want to hear lawyers putting the brakes on who are just -- and if you do, they'll say, well, i'll go find someone else, and that's something that we have to deal with and be mindful of, and one thing that really struck me when i read mr. dean's book was when it came to your attention, i'm looking at him, that the brookings institute might be firebombed, and you went and put the brakes